Protection Visa Claims Based on Bride Price and Customary Marriage

Protection visa claims based on bride price and customary marriage arise where a marriage has been arranged or recognised under custom, a bride price has been paid, and that payment is used to trap, control or punish the woman, or sometimes the man. In many communities, a bride price is an ordinary part of marriage. The problem arises when the payment is treated as giving the husband and his family rights over the woman that she cannot escape.

Protection visa claims based on bride price and customary marriage are made most often by women from parts of the Pacific and Africa, where customary marriage and bride price remain common. The same legal principles apply wherever the practice exists. This article explains how these claims work, why they are often refused, and how the common findings against them can be answered.

Can bride price or customary marriage support a protection visa?

Yes. A bride price or customary marriage can support a Subclass 866 protection visa where the applicant has a well-founded fear of persecution, or faces a real risk of significant harm, because of obligations arising from the marriage, and effective protection is not available in her home country.

The payment of a bride price is not, by itself, persecution. Protection visa claims based on bride price and customary marriage depend on what the arrangement means for the applicant in practice. That may include:

• being unable to leave a violent husband because her family would have to repay the bride price;
• being sent back to the husband by her own family, or punished for leaving;
• violence from the husband or his family, justified by the payment;
• demands for repayment backed by threats, violence or abduction;
• being required, as a widow, to marry a relative of the late husband; and
• losing her children to the husband's family, because the bride price is seen as giving them rights over the children.

The definitive guide to the Subclass 866 protection visa explains the general criteria, and the guide to protection visa eligibility explains what to check before applying.

How bride price creates the risk of harm

In protection visa claims based on bride price and customary marriage, the risk usually comes from the way the payment changes the woman's position within both families.

Where the payment is large, or has been shared among many relatives, the woman's own family may be unable or unwilling to repay it. Leaving the marriage may be treated as a breach that exposes her family to demands from the husband's family. Her own relatives may therefore pressure her to return, or refuse to take her in. A woman who leaves may find that neither family will shelter her.

The husband and his family may also treat the payment as a purchase. Violence may be excused on the ground that she belongs to them. Attempts to leave may be met with force, abduction or demands for compensation. Where the payment involved the wider clan, the dispute may involve many people, not only the husband.

The payment may also create pressure long after the marriage. Where the husband's family believes it has not received what it paid for, for example because no children have been born or because the wife has not obeyed his family, it may demand repayment or impose punishment. Where the wife's family has spent the payment, it may treat her as responsible for the debt. A woman in that position can be threatened by both families at once, each for different reasons. The key point for protection visa claims based on bride price and customary marriage is that the applicant's lack of choice is enforced by two families and a community, not just one person. That is what makes state protection and relocation so difficult, and it should be explained in detail in the claim.

Widow inheritance and obligations after a husband's death

Protection visa claims based on bride price and customary marriage can also arise after the husband dies. In some communities, a widow is expected to marry a brother or other relative of her late husband, because the bride price is seen as having secured her for his family. A widow who refuses may be expelled from the home, lose her children and property, or face violence.

Section 5J(3)(c)(v) of the Migration Act provides that a person cannot be required to "enter into or remain in a marriage to which that person is opposed". A widow cannot be expected to accept a customary remarriage to avoid harm.

Where the widow has no other family support, the claim may overlap with the position of women without male support, which My Migration Lawyers deals with in separate guidance. The claim should explain what the custom requires in her community, who is enforcing it, and what has happened to other widows who refused.

Children and bride price

Children are often at the centre of protection visa claims based on bride price and customary marriage. In some communities, the payment of a bride price is understood to give the husband's family rights over the children of the marriage. A woman who leaves may be allowed to go, but not to take her children. A widow who refuses a customary remarriage may be expected to leave the children behind.

The claim should explain what custom and law provide about children in the applicant's community, whether courts would apply the formal law in her favour in practice, and what the husband's family has said or done about the children. Where the children would face harm themselves, such as neglect, violence or an early marriage, that should be set out as well. Each child may be included in the mother's application as a member of the family unit. The Subclass 866 protection visa page explains how family members are included.

Why protection visa claims based on bride price and customary marriage are misunderstood

Protection visa claims based on bride price and customary marriage are often misunderstood because the practice is lawful, common and culturally accepted in the applicant's country. A decision maker may see it as a private family arrangement rather than a source of persecution.

The claim should address that directly. It is not the custom that is the problem. It is the way the custom is used to deny this woman any means of escape from violence or control. The account should explain the specific sequence: the marriage, the payment, the harm, the attempt to leave, and the response of both families and the authorities. When those events are set out clearly, the connection between the bride price and the harm becomes plain.

Which Convention ground applies?

The Convention ground in protection visa claims based on bride price and customary marriage is usually membership of a particular social group.

Section 5L of the Migration Act sets out when a person is a member of a particular social group other than a family. The group must share a characteristic that is innate or immutable, or so fundamental to identity or conscience that a member should not be forced to renounce it, or that distinguishes the group from society. The characteristic cannot be the fear of persecution itself.

Groups argued in protection visa claims based on bride price and customary marriage include:

• women in a particular country or province;
• women married under custom for whom a bride price has been paid;
• separated or divorced women, where the applicant has left the marriage; and
• widows in a community that practises widow inheritance.

The Department's processing guidelines give the example of "separated women in country X" as a group, with family violence treated as the harm feared. They also state that if a woman faces harm for any reason, but the state refuses to protect her because of her gender, that may itself amount to persecution for a Convention reason.

The marriage she cannot leave: section 5J(3)

Section 5J(3)(c)(v) is central to protection visa claims based on bride price and customary marriage. A decision maker cannot find that the woman would be safe if she returned to her husband, or accepted a customary remarriage. The provision applies whether the marriage is registered with the state or recognised only under custom.

This answers a common line of reasoning in these claims. A decision maker may observe that the violence stopped when the applicant was with her husband and complying with his family's expectations, or that the dispute would end if she returned. Those observations describe the very compliance the law does not require.

Where the harm feared includes violence within the marriage, the claim overlaps with family violence claims, which My Migration Lawyers deals with in separate guidance. Where the marriage was arranged without the applicant's consent, it also overlaps with forced marriage, which is dealt with separately as well. Protection visa claims based on bride price and customary marriage should present all of the harm together, while making clear that the bride price is what prevents the applicant from escaping it.

Is state protection available?

State protection is often the deciding issue in protection visa claims based on bride price and customary marriage. The harm is usually inflicted by family members and resolved, if at all, through customary processes rather than the courts.

For a refugee claim, section 5J(2) provides that a person does not have a well-founded fear of persecution if effective protection measures are available. Section 5LA requires, in broad terms, that the state be willing and able to offer protection that is accessible and durable, including an appropriate criminal law, a reasonably effective police force and an impartial judicial system. For complementary protection, section 36(2B)(b) asks whether the applicant could obtain protection such that there would not be a real risk of significant harm.

The Department's guidelines direct officers to consider whether the state is reluctant to become involved or turns a blind eye. In protection visa claims based on bride price and customary marriage, the evidence should address:

• whether police treat bride price disputes as family or customary matters, and decline to act;
• whether village or customary courts, where they exist, apply custom in the husband's favour;
• whether protection orders are available and enforced in the applicant's area;
• whether compensation payments are used to resolve violence against women instead of prosecution; and
• what happened when the applicant or women she knows sought help.

The Complementary Protection Guidelines state that the mere existence of protective measures shows only that they are available. It does not show that the applicant could obtain protection. Published tribunal decisions, discussed below, show that protection orders that are not enforced do not answer the claim.

Could she relocate?

Relocation is the other issue that decides many protection visa claims based on bride price and customary marriage. For a refugee claim, section 5J(1)(c) requires the real chance of persecution to relate to all areas of the country. For complementary protection, section 36(2B)(a) asks whether relocation would be reasonable, in the sense of practicable.

The Department's guidelines recognise that legal or socio-economic reasons, or child-care responsibilities, may prevent women from travelling freely or living on their own without family members. They also note that particular reliance on family for socio-economic support and protection is important in the relocation assessment.

In protection visa claims based on bride price and customary marriage, relocation is often unrealistic because clan and family networks extend across provinces and into towns, because a woman alone may not be able to obtain land or housing outside her family's area, and because the husband's family may pursue her to recover the payment or the children. The evidence should address each of these points for the specific place of relocation proposed.

When complementary protection applies

Complementary protection applies where the applicant is not found to be a refugee but faces a real risk of significant harm. Section 36(2A) defines significant harm as arbitrary deprivation of life, the death penalty, torture, cruel or inhuman treatment or punishment, and degrading treatment or punishment.

The Complementary Protection Guidelines state that rape, or the threat of rape, is very likely to constitute significant harm, and that the circumstances of a forced marriage may amount to torture or cruel, inhuman or degrading treatment. In protection visa claims based on bride price and customary marriage, a real risk of serious assault, sexual violence or abduction if the applicant is returned to the husband's family can fall within the list. The page on complementary protection explains the test.

Men and bride price disputes

Men also make protection visa claims based on bride price and customary marriage, but their claims raise different legal issues. A man may be threatened by his wife's family because the bride price has not been paid in full, or because he has left the marriage and they demand compensation. The dispute may extend to his own relatives.

These claims are harder under the refugee test. A dispute about an unpaid bride price is often treated as a private or commercial dispute, without a Convention reason. Where the man claims to be targeted as a member of his family, section 5K requires the decision maker to disregard harm to other family members where the reason for that harm is not a Convention reason. A family feud that began over a bride price will not usually become a Convention claim simply because the family is targeted.

Complementary protection is therefore usually the stronger framework for men in bride price disputes. The claim must show a real risk of significant harm that is personal to the applicant, and that the state would not protect him and he could not relocate. Where the dispute has become a cycle of retaliation between clans, the claim overlaps with blood feud claims, which My Migration Lawyers deals with in separate guidance.

Evidence for protection visa claims based on bride price and customary marriage

The evidence in protection visa claims based on bride price and customary marriage must establish the marriage, the payment, the obligations it created, and the harm that follows.

Useful evidence includes:

• the applicant's detailed account of the marriage, the payment, who contributed to it and who received it;
• any record of the payment, such as a list of contributions, photographs of the ceremony or statements from people who were present;
• evidence of violence, such as medical records, photographs or police reports;
• protection orders, village or customary court records, and evidence of whether they were enforced;
• messages from either family demanding the applicant's return or repayment; and
• country information about bride price, customary marriage, widow inheritance, and police and court responses in the applicant's province or community.

The guides to the protection visa statement of claims and protection visa evidence explain how this material is presented. The page on the protection visa interview explains what to expect at interview. The guide to Form 866 explains how the claims and each family member are recorded in the application, and the guide to delayed Subclass 866 applications explains how a delay in applying is assessed.

Tribunal decisions involving protection visa claims based on bride price and customary marriage

Published tribunal decisions show that protection visa claims based on bride price and customary marriage are examined closely on review, particularly on state protection and relocation. The following decisions were remitted, meaning the Tribunal sent the matter back to the Department for reconsideration. A remittal is not a visa grant.

• 2405430 (Refugee) [2024] AATA 2226. An applicant from Solomon Islands in a bride-price marriage with sustained domestic abuse despite protection orders.
• 2010265 (Refugee) [2021] AATA 4555. An applicant from Papua New Guinea facing a former partner's violence, bride-price obligations and inadequate protection for a single woman.
• 2009630 (Refugee) [2021] AATA 5128. An applicant from Papua New Guinea who experienced domestic and sexual abuse within a forced bride-price marriage.
• 1712070 (Refugee) [2021] AATA 1041. A separated woman from Papua New Guinea facing unresolved bride-price obligations, abduction and tribal violence.

Each decision turned on its own facts. What they show is that the bride price is often the reason the applicant cannot escape, and that protection orders on paper do not end the inquiry.

What if protection visa claims based on bride price and customary marriage are refused?

If the Department refuses the application, the decision can usually be reviewed by the Administrative Review Tribunal. The time limit to apply is short and strictly applied, and it runs from the date the applicant is notified of the refusal.

Refusals in protection visa claims based on bride price and customary marriage usually rest on findings that the dispute is a private family matter, that police or protection orders would protect the applicant, or that she could relocate to a town away from both families. Each finding can be tested at review. The Tribunal considers the matter afresh and can take new evidence, including country information about customary courts and police practice in the applicant's province, and statements from relatives about the dispute between the families. The pages on protection visa refusals and the Subclass 866 refusal ART guide explain the process.

How My Migration Lawyers acts in protection visa claims based on bride price and customary marriage

My Migration Lawyers acts in protection visa claims based on bride price and customary marriage for people already in Australia. The firm deals with complex protection matters and acts in many Subclass 866 claims involving gender-based violence and customary obligations, including claims by women from the Pacific. It is capable of handling these matters from the first consultation to decision, and at review if the visa has been refused.

The work includes:

• The applicant's account. The account of the marriage, the payment and the harm is taken in private, with an interpreter where needed. It is the applicant's own evidence, which she reviews and corrects before it is lodged, and she decides which claims are advanced.
• Both families. The position of the husband's family and the applicant's own family is set out, so that the decision maker understands why neither will protect her.
• Section 5J(3)(c)(v). The argument that she cannot be expected to return to the marriage, or accept a customary remarriage, is made expressly.
• Customary processes. Country information about police, village courts and compensation practices is used to show why state protection is not effective in practice.
• Complementary protection. The claim is argued under both frameworks from the start.

My Migration Lawyers is led by Principal Lawyer Weiwei Zhang. The firm's protection visa lawyers page explains how it acts in Subclass 866 matters.

If a bride price or customary marriage means you cannot safely return home, book a consultation with My Migration Lawyers online, or call 1300 040 300.